STATE OF NEW JERSEY v. W.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0948-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

W.H.,

Defendant-Appellant.

______________________________________________________

December 27, 2012

Submitted December 18, 2012 - Decided

Before Judges Fisher and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-02-0100.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, of counsel and on the brief).

PER CURIAM

In 2005, defendant was tried and convicted by a jury of: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(c); and second-degree child endangerment, N.J.S.A. 2C:24-4(a). The victim of these crimes was defendant's stepson, J.S., who was fourteen years old at the time of the offenses.

On May 5, 2006, following an appropriate merger of the sexual assault convictions, defendant was sentenced to a twenty-year prison term, subject to an eighty-five percent period of parole ineligibility, on the first-degree conviction. The judge also imposed a concurrent ten-year term, with a five-year period of parole ineligibility, on the child endangerment conviction.

Defendant filed an appeal, arguing that he was denied a fair trial because: the prosecutor elicited testimony from a police officer regarding a warrant issued for defendant's arrest; because defendant's wife testified that defendant was incarcerated in the county jail shortly after his arrest; and the prosecutor questioned defendant about whether he thought the State's witnesses were lying. Defendant also asserted that the sentence was excessive. We rejected these arguments and affirmed. State v. W.H., No. A-6478-05 (App. Div. July 2, 2008). The Supreme Court denied defendant's petition for certification on January 16, 2009.

Defendant filed his petition for post-conviction relief (PCR) on August 20, 2008. Following the assignment of counsel and additional submissions, on March 7, 2011, the PCR judge denied defendant's PCR petition without conducting an evidentiary hearing.

Defendant appeals the denial of his PCR petition, arguing:

I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE THE PCR COURT ERRED IN RULING THAT EVIDENCE OF J.S.'S PRIOR AGGRESSIVE SEXUAL CONDUCT WOULD HAVE BEEN INADMISSIBLE AT TRIAL UNDER THE RAPE SHIELD LAW SINCE THE EVIDENCE WAS RELEVANT, NOT UNDULY PREJUDICIAL, AND WOULD NOT HAVE UNDERMINED THE PURPOSES OF THE RAPE SHIELD LAW AS THERE WAS NO OTHER EVIDENCE AVAILABLE TO SUPPORT THE DEFENSE ASSERTED.

II. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE TRIAL COUNSEL'S FAILURE TO OBTAIN, REVIEW, AND OFFER IN EVIDENCE DYFS RECORDS SHOWING PRIOR AGGRES-SIVE SEXUAL CONDUCT BY J.S. IN SUPPORT OF THE DEFENSE ASSERTED AT TRIAL WAS INEFFEC-TIVE ASSISTANCE OF COUNSEL UNDER THE FIRST PRONG OF THE STRICKLAND TEST,[1] AND THE RESULTING PREJUDICE TO DEFENDANT SATISFIED THE SECOND PRONG OF THE STRICKLAND TEST.

III. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFEN-DANT'S CONVICTION VACATED BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE TRIAL COURT IMPROPERLY BOLSTERED THE CREDIBILITY OF J.S.; WHEN THE PROSECUTOR INSINUATED THAT THE DEFENDANT HAD TAILORED HIS TRIAL TESTIMONY; WHEN THE PROSECUTOR ELICITED TESTIMONY FROM THE DEFENDANT CHARACTERIZING THE TRUTHFULNESS OF THE STATE'S WITNESSES; AND WHEN THE PROSECUTOR ELICITED TESTIMONY THAT A WARRANT FOR THE DEFENDANT'S ARREST HAD BEEN APPROVED BY A JUDGE AND AN ASSISTANT PROSECUTOR.

IV. THE DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

A. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ASK FOR A CURATIVE INSTRUCTION AFTER THE COURT BOL-STERED THE TESTIMONY OF J.S.

B. TRIAL COUNSEL FAILED TO OBJECT TO THE PROSECUTOR'S INSINUATION THAT DEFENDANT HAD THE OPPORTUNITY TO TAILOR HIS TESTIMONY.

C. TRIAL COUNSEL FAILED TO OBJECT TO THE PROSECUTOR'S CROSS-EXAM-INATION EFFORT TO HAVE DEFENDANT CHARACTERIZE THE TESTIMONY OF OTHER WITNESSES.

D. TRIAL COUNSEL FAILED TO OBJECT TO TESTIMONY THAT A WARRANT WAS ISSUED FOR DEFENDANT'S ARRESTS.

E. THE CUMULATIVE EFFECT OF TRIAL COUNSEL'S DEFICIENT PERFORMANCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

F. APPELLATE COUNSEL WAS INEFFEC-TIVE.

G. THE TRIAL COURT VIOLATED ITS DISCRETION IN IMPOSING A MAXIMUM SENTENCE OF 20 YEARS WITH 85% STIPULATION AND MEGAN'S LAW FOR LIFE SUPERVISION.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only a few additional comments.

The arguments contained within Points III and IV either were or could have been raised in the direct appeal and are therefore barred from further review. See State v. Harris, 181 N.J. 391, 494 (2004); R. 3:22-5. To the extent that defendant incorporates arguments in Points III and IV regarding the effectiveness of his trial attorney and his attorney during the direct appeal, we agree with the PCR judge's determination that defendant did not sustain the prejudice prong of the Strickland/Fritz test with regard to the instances in which his counsel failed to object at trial or failed to raise the issues of present concern either in the trial court or on direct appeal.

We also find insufficient merit to warrant discussion of Points I and II beyond the following brief comments. Defendant argues in this appeal that his trial attorney was ineffective, within the meaning of the Strickland/Fritz test, by failing to seek records maintained by the former Division of Youth and Family Services2 that would suggest J.S. was sexually aggressive. Defendant claims this information would support his contention at trial that he was the victim of J.S.'s sexual aggression. The PCR judge assumed that the first prong of the Strickland/Fritz test was met with regard to trial counsel's failure to seek the Division records regarding J.S., but ultimately determined that this information would have had no impact on the trial because the Rape Shield Law, N.J.S.A. 2C:14-7, would have barred admission of the Division's records. That is, the Rape Shield Law precludes the admission of, or reference to, "evidence of the victim's previous sexual conduct" in a prosecution for offenses such as those charged here "except as provided" in the Rape Shield Law.

In arguing that the Division records contain evidence having a tendency to disprove the State's theory and supporting his defense that he was a victim of J.S.'s sexual aggression, defendant would have been required -- if this had been asserted at trial -- that, as mandated by N.J.S.A. 2C:14-7(a), the evidence was "relevant and highly material and meets the requirements of subsections c. and d. of" N.J.S.A. 2C:14-7. Defendant would not have succeeded in this regard because neither of those subsections applied. Subsection (c) declares that such evidence is not "relevant unless it is material to proving the source of semen, pregnancy or disease," which was not the case here. N.J.S.A. 2C:14-7(c). And subsection (d) declares that evidence "of the victim's previous sexual conduct with the defendant shall be considered relevant if it is probative of whether a reasonable person, knowing what the defendant knew at the time of the alleged offense, would have believed that the alleged victim freely and affirmatively permitted the sexual behavior complained of." N.J.S.A. 2C:14-7(d) (emphasis added). We need not consider the application of the other aspects of subsection (d) because the evidence in question was not of J.S.'s previous sexual conduct with defendant. Lastly, we note that N.J.S.A. 2C:14-7(b) states that "[i]n the absence of clear and convincing proof to the contrary, evidence of the victim's sexual conduct occurring more than one year before the date of the offense charged is presumed to be inadmissible under this section." The Division records in question concern J.S.'s sexual involvement with someone other than defendant more than one year prior to the offenses for which defendant was convicted.

In short, for these reasons, we agree with the conclusion reached by the PCR judge. Even if defendant's trial attorney was ineffective within the meaning of the first prong of the Strickland/Fritz test by failing to seek the Division records and thereafter attempt to move them into evidence at trial, the Rape Shield Law would have precluded admission of that information. Accordingly, defendant's claim for post-conviction relief was properly denied because defendant could not sustain the second prong of the Strickland/Fritz test.

1Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See also State v. Fritz, 105 N.J. 42 (1987).

2The Division was recently renamed the Division of Child Protection and Permanency. L. 2012, c. 16 (eff. June 29, 2012).